Constitutionalism and the Rule of Law

Bo LI

Perspectives, Vol. 2, No. 1

In my last two essays I discussed the meaning of the rule of law and constitutionalism. In this essay, I will discuss the relationship between constitutionalism and the rule of law. My thesis will be that, first, constitutionalism is a necessary foundation of the rule of law; secondly, liberal constitutionalism acts as a minimal guarantee for the justice of both the content and the form of law; thirdly, liberal constitutionalism strikes a proper balance between rule of law and rule of person; and finally, constitutionalism is safeguarded by the rule of law.

Depending on how constitutionalism and the rule of law are defined, different writers have different interpretations on the relationship between constitutionalism and the rule of law. Some scholars in China argue that the rule of law is merely one part of constitutionalism, and that the rule of law alone does not establish a constitutional system. Other Chinese scholars think that the rule of law is equivalent to constitutionalism, and that the supremacy of law is first and foremost the supremacy of the constitution. (See, Chen, 1999, p. 149.) A. V. Dicey, the noted English jurist, viewed "the universal rule or supremacy ... of ordinary law" as one element of English constitutionalism (Dicey, 1982, cxlviii). In this essay, I define constitutionalism and the rule of law in the generally accepted way: constitutionalism is a system of government based on the supremacy of the constitution, democratic government, separation of powers, checks and balances, judicial independence and protection of individual rights; the rule of law describes a condition of government in which the supremacy of democratically made laws, equality before law, procedural justice and effective constraints on government arbitrariness all exist. Under these definitions, the relationship between constitutionalism and the rule of law is a four-fold connection.

First, constitutionalism is a necessary foundation for the rule of law. I mentioned in one of my previous essays that one core meaning of the rule of law is "limitation;" that is, law has to place certain limits on what the government can do and prescribe how the government conducts its business. How are limits placed on the government? The only time-tested way is through a constitutional structure that includes separation of powers, checks and balances and judicial independence. Constitutionalism, as a system of institutional arrangements designed to empower and limit the government at the same time, forms an institutional foundation for the rule of law. In particular, the constitutional mandates of separation of powers, checks and balances, independent constitutional review and an independent judiciary provide the institutional basis for judges to find and articulate laws independently, for laws to place meaningful constraints on government behavior, and for established procedures to be followed.

One caveat is necessary here. It is unproductive, and even dangerous, to postulate that liberal constitutionalism is only about limiting the government. In general, there is a popular misconception in some circles that liberalism implies a weak government. This is not correct. Introducing liberalism and liberal constitutionalism does not weaken the government. To the contrary, the liberal constitutional package makes the government stronger and more stable. Liberal constitutional ideas and practices (such as separation of powers, checks and balances, civil rights, etc.) make the government more responsible, more consistent, more predictable, more just, and more respected. In addition, although the liberal constitutional package is not perfect, it provides one of the better frameworks for competing demands of individuals and society to reconcile and to play out. For example, liberal constitutional government recognizes different interests without pre-determining their legitimacy, thereby avoiding the buildup of unresolved conflicts.

According to Stephen Holmes, a prominent political theorist at Princeton University, there are two kinds of constitutionalism: positive constitutionalism and negative constitutionalism. We find positive constitutionalism in the American Constitution, which not only aims at limiting the coercive power of the government, but also tries to empower and enable the government. In other words, the American Constitution is an attempt to prevent both tyranny and anarchy. In fact, the desire to strengthen the federal government, not the desire to limit it, was the motive for calling the Philadelphia Constitutional Convention in 1787. In the Federalist Papers, we find that Hamilton, Madison and Jay were mainly concerned about the weakness or "imbecility" of the national government. The federalists believed that without a strong national or federal government, there would be no liberty. Compared to tyranny, said the federalists, anarchy was an even bigger threat to the liberty of the American people in the 1780s. The federalists argued that the American Constitution served the twin goals of establishing checks and balances within the government and enabling the federal government to make the United States a strong union and protect citizens' life, liberty and property. As such, positive constitutionalism shows that liberal constitutional government can be, and often is, a strong government. This point is also argued forcefully by Niccolo Machiavelli in his famous (or perhaps infamous) work, The Prince. Machiavelli argues that if the prince has arbitrary power, he may not be powerful because he can be assassinated. However, if the prince can commit himself to not taking people's wives and property, then he will not be assassinated, can remain powerful, and will have the support of his citizens in times of war. Machiavelli, in this oblique sense, is liberal and democratic. There is a strong sense in liberalism that a liberal government can get more support from its citizens by interfering less with their private lives, and that liberal government is therefore strong government. Examples of strong liberal constitutional governments include the United Kingdom and the United States.

In contrast, argues Holmes, we find negative constitutionalism in a French Constitution that was instituted at about the same time as the American Constitution. The French were so concerned about the coercive power of the government that they wrote their 1790 Constitution to solve only the problem of tyranny, not the problem of anarchy. When crisis came, the French Constitution did not effectively enable the government, and the French people overthrew the government. It was not long before Napoleon ruled France as a dictator.

The lesson is simple. A liberal constitutional government, although limited, is a strong government. Liberalism and liberal constitutionalism are not only about limiting the government's power, but also about empowering the government. A liberal constitutional government cannot arbitrarily deprive citizens' of life, liberty or property, but it must also be powerful enough to maintain peace and social order, to supply national defense and other public goods, to establish rule of law and other social and economic infrastructures (including a system of property rights), and to provide criminal and civil justice. Otherwise, there will be no basic protection of citizens' life, liberty and property, and the liberal ideals will not be realized. In addition, a liberal government is strong also in the sense that by not meddling with citizens' private lives, a liberal government can command more support from the people. As such, liberty both constrains and empowers government.

The second aspect of the relationship between constitutionalism and the rule of law lies in the fact that constitutionalism provides a minimal guarantee of the justice of both the content and the form of law. As I mentioned in one of my previous essays, western jurisprudence in the last one hundred years has focused exclusively on the form of law; it has concentrated its efforts on finding those procedural devices and safeguards that make law more just and more rational. Western jurisprudence can afford to do so because there has been constitutional democracy in the West for more than two hundred years. Constitutional democracy provides a guarantee that the content of the laws will be just. A large number of constitutional devices, including representative democracy, competitive and periodic elections, and a free press, are designed to ensure the just content of laws. Giovanni Sartori, one of the most prominent political philosophers of our time, writes that "the existence of the Rechtsstaat (constitutional garantisme) appears to eliminate the very possibility of the unjust law and thereby allows the problem of law to be reduced to a problem of form, not of content" (Sartori, 1987, p. 323).

Constitutional government, at the same time, provides a minimal safeguard for the form of law to be just. In order to have procedural justice, specific procedures have to be either written into statutes by legislators or articulated by independent judges in case law. A constitutional mandate and culture of rights protection is necessary for the establishment of fair and transparent procedures. In addition, there must be independent judges dedicated to legal reasoning to see to it that well-established procedures are complied with. A constitutional structure of separation of powers, checks and balances and independent judiciary is necessary for the effective and consistent implementation and enforcement of well-established procedures.

The third aspect of the relationship between constitutionalism and the rule of law is that constitutionalism strikes a proper balance between rule of law and rule of person. To Sartori, either the rule of law or the rule of person, left alone by itself, can be problematic. In a representative democracy, the rule of person means the rule of legislators. Under the rule of person in a representative democracy, law is the product of the "sheer will" of the legislators (Sartori, 1987, p. 308). The rule of person, left unchecked, presents the danger of tyranny. In contrast, under the rule of law, law is the product of judges' "legal reasoning." The rule of law, by itself, can be inadequate for three reasons. First, the rule of law can be too static; secondly, the rule of law can result in the tyranny of (unelected) judges; and finally, the rule of law, by itself, may not address the problem of political freedom (Sartori, 1987, p. 308). As such, the ideal representative democracy needs to strike a proper balance between the rule of legislators and the rule of law. This is done through liberal constitutionalism. The following quote from Sartori's 1987 book is illuminating:

"Liberal constitutionalism is the technique of retaining the advantages of [the rule of legislators and the rule of law] while lessening their respective shortcomings. On the one hand, the constitutional solution adopts rule by legislators, but with two limitations: one concerning the method of lawmaking, which is checked by a severe iter legis; and one concerning the range of lawmaking, which is restricted by a higher law and thereby prevented from tampering with the fundamental rights affecting the liberty of the citizen. On the other hand, the constitutional solution also sees to it that the rule of law is retained within the system. Even though this latter component of the constitutional rule has been gradually displaced by the former, it is well to remind ourselves that the framers of liberal constitutions did not conceive of the state as being a machine a faire lois, a lawmaking machine, but conceived of the role of the legislators as a complementary role according to which parliament was supposed to integrate, not to replace, judicial law finding" (Sartori, 1987, p. 308).

Fourthly and finally, constitutionalism is safeguarded by the rule of law. Without the rule of law, there is no constitutionalism. In other words, if laws are exclusively the results of the "sheer will" of the legislators, there can be no constitutionalism. For a constitutional structure of separation of powers, checks and balances and rights protection to exist, there must be some limits on what the legislators can do. This limit is imposed by the rule of law and implemented through an independent judiciary, the process of judicial review, and the notion that law is, at least in part, the product of independent legal reasoning by judges. "Even though our constitutions are becoming more and more unbalanced on the side of statutory lawmaking, as long as [constitutions] are considered a higher law, as long as we have judicial review, independent judges dedicated to legal reasoning, and, possibly, the due process of law, and as long as a binding procedure establishing the method of lawmaking remains an effective brake on the bare-will conception of law -- as long as these conditions prevail, we are still depending on the liberal-constitutional solution of the problem of political power" (Sartori, 1987, p. 309).

Constitutionalism is also safeguarded by the rule of law in another sense. The letters of the constitution, by themselves, are neither enabling nor constraining. For constitutional provisions to be meaningfully and effectively operative, there must be an institutional and cultural apparatus, which is partially created by the constitution itself, to implement, enforce and safeguard the constitution. The rule of law is one key component in the constitution-implementing and -safeguarding apparatus. An independent judiciary, independent constitutional review, and the notion of the supremacy of law all work together to ensure that the letter and spirit of the constitution are complied with in the working of a constitutional government.

In summary, constitutionalism forms an institutional foundation for the rule of law, strikes a proper balance between the rule of law and the rule of person, provides a minimal guarantee for the justice of both the content and the form of law and, finally, is itself safeguarded by the rule of law. This, in my view, constitutes a relatively complete description of the relationship between constitutionalism and the rule of law. In my next essay in this series, I will describe other institutional arrangements necessary for the rule of law to exist and the obstacles facing China on the road toward the rule of law.

(The author is an attorney with the New York law firm of Davis Polk & Wardwell.)

References:

1. Chen, Albert H. Y. "Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law." UCLA Pacific Basin Law Journal 17 (1999-2000): 125-165.

2. Dicey, A. V. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, 1982.

3. Hamilton, Alexander, James Madison and John Jay. The Federalist Papers. London: Everyman, 1996.

4. Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press, 1995.

5. Machiavelli, Niccolo. The Prince. Oxford University Press, 1998.

6. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, New Jersey: Chatham House, 1987.